SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
Preliminary Injunctions A trade mark may be enforced through a prelimi - nary injunction. To grant a preliminary injunction, the party is required to prove that: • the claim of the requesting party has occurred or is imminent; • the infringement threatens to cause a preju - dice that cannot be easily remedied; • there is some urgency; and • the party requesting the preliminary injunction has sufficient interest in legal protection. Ex Parte Preliminary injunctions See 10.4 Ex Parte Relief . In cases of special urgency, the court may issue injunctions imme - diately without hearing the other party. The con - ditions for special urgency are that: • a delay to the injunction would likely cause irreparable harm to the claimant; • the claimant acts immediately without delay after acquiring knowledge of the infringement (generally within a few days); or • the claim/enforcement might be frustrated if Any person requesting preliminary measures may, in particular, request that the court orders measures to: • secure evidence; • establish the origin of items unlawfully bear - ing a trade mark or indication of source; • preserve the existing state of affairs; and • provisionally enforce claims for injunctive relief and remedy the freezing of assets such as bank accounts The Swiss Civil Procedure Code (Articles 261– 262) grants extensive discretion to the judge in the opposing party is notified. Other Preliminary Measures
deciding on the specific measure, the scope of the measure and the option granted to the opponent to prevent the preliminary measures
by providing a security deposit. 10.2 Monetary Remedies
Different remedies can alternatively be awarded to trade mark and copyright owners in main infringement proceedings. Unlike in preliminary proceedings, judges do not have discretion in ordering remedies but are strictly bound to the procedural claims invoked by the claimant. The following options exist. • Trade mark or copyright owners may claim actual damages in terms of the amount of involuntary reduction in net capital caused by the infringement (eg, lost profit). The damage is determined by comparing the actual and the hypothetical economic position without infringement. Such damage is hard to prove. • The infringer’s actual profits generated by the unjust use of the claimant’s intellectual prop - erty can be claimed as damage. • A hypothetical licence/reasonable royalty fee can be awarded as damages. Such claims require proof of past licence agreements con - ducted by the claimant regarding the trade mark or copyright in question. • Swiss law does not provide for enhanced damages for wilful acts or punitive damages. However, in case of wilful acts, statutory criminal offences may apply. Copyright is an informal, unregistered right in Switzerland, and therefore no registration is required to claim damages. Unregistered trade mark rights do not exist in Switzerland, so in this case registration is a prerequisite for the exist - ence of the right itself and therefore for claims for damages.
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